Pending
before the Court is Defendant David Lee Zirkle's Motion
to Suppress Evidence Obtained from Illegal Seizure of Mail
Parcel. ECF No. 20. The Court held a hearing on the motion on
August 22, 2017. Upon considering the arguments of the
parties and the evidence presented, the Court
DENIES Defendant's motion for the
following reasons.

On
November 23, 2016, United States Postal Inspector Robert A.
DiDomenico received a tip that a large volume of express mail
packages were being sent from various addresses in Michigan
to 2422 Collis Avenue in Huntington, West Virginia. Inspector
DiDomenico testified that, to his knowledge, the tip went
from a mail carrier to a supervisor to him. Inspector
DiDomenico was told the number of express mail packages being
delivered to the address exceeded the number of packages
being delivered to some businesses that ordinarily receive
these types of packages and one package was addressed to
someone who did not live there. Based upon the tip, Inspector
DiDomenico placed a “Mail Watch” on the delivery
address, so he would get a notice the next time the address
was receiving a package. On the morning of December 9, 2016,
notice was given that a package addressed to 2422 Collis
Avenue was at the Huntington, West Virginia, Post Office.
Given this alert, Inspector DiDomenico promptly went to the
Huntington Post Office early in the morning to inspect the
package.

Upon
examining the package, Inspector DiDomenico observed it was a
Priority Mail Express Flat Rate parcel, with a handwritten
label, and was from Michigan. Inspector DiDomenico testified
that, based upon his training and experience, drug
traffickers often used overnight, express mail because it has
quick delivery and is easy to track. He also said that the
majority of express mail packages have typed address labels
because they are sent from business-to-business, not from
person-to-person like the parcel at issue here. In addition,
he testified that Michigan is a known as a source state for
the shipment of drugs into West Virginia.

In
light of his observations, Inspector DiDomenico ran a
CLEAR[1] report as part of his investigation.
“CLEAR is a law enforcement database that compiles
public records, government and financial information, and
public utilities for the purpose of aiding criminal
investigators with locating and identifying suspects,
witnesses, and missing persons.” Resp. of the
United States to Def.'s Mot. to Suppress, at 2 n.2,
ECF No. 21. Upon running the report, the sender's
Michigan address came back as a nonexistent.[2]

Given
all this information, Inspector DiDomenico called a canine
handler with the West Virginia State Police. Trooper First
Class Kevin Williams brought a drug dog to the scene, and the
dog positively alerted to the odor of drugs. Inspector
DiDomenico then applied for a federal search warrant for the
parcel. A warrant was issued at 11:47 a.m. that same day.

After
getting the warrant, the package was opened, and it was found
to contain approximately 30 grams of suspected heroin. A
sample of the heroin was repackaged, and Inspector DiDomenico
delivered it to Defendant. Defendant accepted and signed for
the package.[3]Thereafter, officers executed a separate
search warrant for 2422 Collis Avenue. When Officers entered
the residence, Defendant was found holding the heroin in his
hand.[4]

Defendant
argues the package was unlawfully seized because Inspector
DiDomenico lacked a reasonable and articulable suspicion that
the package contained contraband when he removed it from the
regular flow of commerce. Therefore, Defendant insists
Inspector DiDomenico's exertion of dominion and control
over the package constitutes an unreasonable seizure.
Specifically, Defendant argues the fact the package had a
handwritten label and originated from Michigan is innocuous
because large volumes of innocent parcels have similar
characteristics. Thus, Defendant contends these factors are
simply insufficient to raise any reasonable and articulable
suspicion that criminal activity is afoot. Likewise,
Defendant asserts that the unadorned tip by postal employees
that suspicious packages were being delivered to
Defendant's address adds little, if anything, to the
level of suspicion.

Although
the package was addressed to “Debbie Zerkle [sic],
” who is Defendant's deceased mother, the United
States concedes that Defendant has standing to bring a
challenge under the Fourth Amendment.[5] The Fourth Amendment,
however, does not protect against all searches and
seizures-only those that are “unreasonable.” U.S.
Const. amend. IV. With respect to the mail, it is well
established that “[l]etters and other sealed packages
are in the general class of effects in which the public at
large has a legitimate expectation of privacy[.]”
United States v. Jacobsen, 466 U.S. 109, 114 (1984).
Although “warrantless searches of such effects are
presumptively unreasonable, ” id. (footnote
with citations omitted), an examination of a package's
external features does not constitute a search under the
Fourth Amendment. United States v. Van Leeuwen, 397
U.S. 249, 250-52 (1970); see also United States v.
Castellanos, 716 F.3d 828, 849 (4th Cir. 2013) (citing
United States v. Hinton, 222 F.3d 664, 675 (9th Cir.
2000), for the position that “there is no expectation
of privacy in the address on a package”). Nevertheless,
this Court must resolve whether the facts in this case were
sufficient to raise a reasonable suspicion to briefly detain
the parcel for investigative purposes. See United States
v. Kent, 652 Fed.Appx. 161, 165 (4th Cir. 2016)
(unpublished) (“A package may be detained briefly for
investigative purposes, but only if there is reasonable
suspicion that it contains contraband.” (citations
omitted)).

In
determining whether reasonable suspicion existed to detain
the parcel, the Court must consider “the totality of
the circumstances, ” and decide whether Inspector
DiDomenico had “a particularized and objective basis
for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002) (internal quotation
marks and citation omitted). Under this umbrella, a
combination of seemingly innocent factors may create
reasonable suspicion. Kent, 652 Fed.Appx. at 165
(stating “innocent factors, taken together, may add up
to reasonable suspicion” (citations omitted)).
Additionally, in determining whether reasonable suspicion
existed, the Court must “consider the ‘facts
within [Inspector DiDomenico's] knowledge' when the
package was detained.” Id. at 165 n.1 (quoting
United States v. Powell, 666 F.3d 180, 186 (4th Cir.
2011) (“The reasonable suspicion standard is an
objective one, so we examine the facts within the knowledge
of [the officer] to determine the presence or nonexistence of
reasonable suspicion.” (citation and internal quotation
marks omitted))).

In
looking at the facts of this case, Inspector DiDomenico
issued a “Mail Watch” after receiving a tip from
other postal employees that suspicious packages were being
sent from Michigan to Defendant's address. When the
parcel at issue arrived at the Huntington Post Office,
Inspector DiDomenico went to the Post Office early in the
morning and examined the parcel. Based upon his first-hand
observations and his training and experience, Inspector
DiDomenico identified several factors that were unusual or
otherwise were consistent with the drug trade. He
specifically noted: (1) the parcel was sent overnight by
Priority Mail Express, which is more expensive,
[6] but
allows for quick delivery and tracking for drug traffickers;
(2) parcels sent by Priority Mail Express are most often sent
from business-to-business, but this parcel was sent from
person-to-person; (3) most of these parcels have typed
labels, but this label was handwritten; and (4) the package
originated from Michigan, which Inspector DiDomenico stated
was a source state for many drugs coming into the area. After
identifying these features, Inspector DiDomenico ran the
addresses on the label through the CLEAR databank and found
the return address was nonexistent. Although the Court does
not give much weight to the fact the parcel was sent from
Michigan and had a hand-written label, and only some weight
to the fact the parcel was sent by Priority Mail Express
person-to-person (rather than business-to-business), when
these facts are combined with the initial tip from postal
employees that an abnormally large volume of these types of
packages were being delivered to the address, more than some
businesses were receiving, and the fact the parcel had a
fictitious return address, the Court finds from the totality
of the circumstances that Inspector DiDomenico had sufficient
articulable facts to establish reasonable suspicion for a
brief delay to conduct further investigation.

With
respect to the delay, the critical time period for this Court
to consider is the time between when the parcel was stopped
pursuant to the “Mail Watch” and when the dog
indicated there were drugs inside.[7] It is clear from the
evidence that this time period was very brief. Inspector
DiDomenico testified that, after he was alerted a parcel had
arrived at the Huntington Post Office, he went to the Post
Office early in the morning, examined the outside of the
package, ran the CLEAR report, and called the West Virginia
State Police. Inspector DiDomenico stated it only took
somewhere between thirty and sixty minutes for the canine
unit to arrive at the Post Office.

Inspector
DiDomenico's testimony is consistent with other evidence
presented. Specifically, the outside of the parcel had a
“Scheduled Delivery Time” of “12
noon.” The Magistrate Judge issued the warrant at 11:47
a.m. Therefore, Inspector DiDomenico had to have conducted
his preliminary investigation, got the State Police to arrive
at the scene with the drug dog, and gave the dog the
opportunity to sniff the parcel, while still having enough
time for him to apply for and be issued a warrant before the
scheduled delivery time.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Based
upon these facts, the Court finds the brief seizure of the
parcel was not unreasonable, and there was no violation of
the Fourth Amendment. Accordingly, the Court
DE ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.